Scrambling for Cover on Smelt

Federal Fish Agency Refuses to Answer Any Questions On Scientific Basis for Its Restrictions on Water Deliveries

The U.S. Fish and Wildlife Service (FWS) rules cutting off water deliveries to protect the delta smelt have cost California tens of thousands of jobs and billions of dollars in ruined crops and fallowed fields. Those restrictions aren't helping the smelt; recent surveys show their numbers continue to fall. And now the agency is refusing to answer questions about whether there was any scientific basis for those restrictions in the first place.

As a result, the Family Farm Alliance announced today that it is seeking an order from the court to compel the agency to follow its own regulations: order from the court to compel the agency to follow its own regulations

"The court has already determined that FWS violated the National Environmental Policy Act by adopting these restrictions without conducting an environmental impact analysis of the extraordinary harm they are doing to other endangered species and to the human environment.," said Dan Keppen, Executive Director of the Alliance. "The agency has twice failed to perform the kind of independent review of these regulations that federal laws require. And now they're ducking questions about why the data on delta smelt don't support the limits on water deliveries that they have imposed."

"It shouldn't take a court order to break through the stone wall that FWS has erected," the Alliance's president, Pat O'Toole, wrote in a letter today to Interior Secretary Ken Salazar. "We would prefer to work with you constructively, to restore the transparency and scientific objectivity that the law requires and the public expects for these decisions."

The Endangered Species Act (ESA) and the federal Information Quality Act (IQA) set strict standards to ensure that federal agencies use the best available scientific information and not their own assumptions and speculation when adopting regulations of this kind. These same laws establish a formal procedure enabling the public to ask questions and to request corrections. And they define the requirements that these agencies have to meet to ensure that independent peer reviews of proposed regulations are truly independent and objective.

"We asked FWS 25 questions about their smelt restrictions," Keppen explained. "They answered none of them." Instead, this is how the agency responded:

· Our initial request was summarily rejected by FWS on March 12, 2009. We appealed that decision and had to go to court. FWS finally responded on November 20, eleven months after our request and only in response to our litigation.

· None of the members of FWS's independent peer review panel met the standards defined by ESA and IQA and two of the four members had helped to write some of the studies which FWS used to develop its restrictions - in effect, they were being asked to review the quality of their own work. When this was revealed, FWS agreed to appoint a second panel of independent reviewers.

· To assemble and chair this second panel, FWS hired the same company that had been responsible for putting together the first one. Once again, as nearly as we can determine, none of the members of this panel were required to meet the standards set by ESA and IQA.

· The panelists were never allowed to see the 25 questions that the Alliance submitted. Instead, FWS chopped up the questions and scrambled all the bits and pieces in order to fashion what they called twelve general issues. They then chopped up the general issues and rescrambled everything a second time in order to make up nine questions of their own design. These are the only questions the panel was allowed to answer.

"We are certainly not questioning the integrity or expertise of the individual panelists," said Keppen. "They have simply participated in a process which FWS has been manipulating for its own purposes."

The Family Farm Alliance advocates for family farmers, ranchers, irrigation districts, and allied industries in seventeen Western states. Its activities are focused on one mission - to ensure the availability of reliable, affordable irrigation water supplies to Western farmers and ranchers.

"All of our members in farming are vulnerable to arbitrary or capricious actions by federal regulators," Keppen said. "The Alliance has a history of working cooperatively with public agencies to resolve this kind of problem. We've never had to file a lawsuit before now to compel an agency to follow its own regulations."

The Family Farm Alliance is a grassroots organization of family farmers, ranchers, irrigation districts and allied industries in 17 Western states. The Alliance is focused on one mission: To ensure the availability of reliable, affordable irrigation water supplies to Western farmers and ranchers. For more information on the Alliance, go to www.familyfarmalliance.org